CHAPTER 12 - 12-8 Eligible Examiners

• Jurisdiction: United States

12-8 Eligible Examiners

Texas Rule 204 identifies the types of healthcare providers authorized to conduct physical and mental examinations. Texas Rule 204.1 authorizes "a qualified physician" to conduct a physical examination⁸⁴ and a "qualified physician or . . . a qualified psychologist" to conduct a mental examination.⁸⁵ A physical examination only can be conducted by a "qualified" physician. Neither Texas Rule 204 nor the case law define "qualified."⁸⁶ Presumably the same standard used to determine whether an expert is qualified to render an opinion under Texas Rule of Evidence 702 applies to the determination of whether a physician or psychologist is "qualified" under Texas Rule 204.1.⁸⁷

Texas Rule 204.4 authorizes "psychologists or psychiatrists" to conduct mental examinations of children⁸⁸ and "one or more experts who are qualified in paternity testing to take blood, bodily fluid, or tissue samples to conduct paternity testing as ordered by the court."⁸⁹

Texas Rule 204.5 defines "psychologist" as "a person licensed or certified by a state or the District of Columbia as a psychologist."⁹⁰ "Physician" is not defined in the Rule but has been defined in case law to mean "'a practitioner of medicine' who is skilled in medicine and surgery."⁹¹ "Psychiatrist" is not defined in Rule 204 or in any case addressing it.⁹² Because psychiatrists are physicians, however, the case law's definition of "physician" should apply to "psychiatrist." Moreover, consistent with statutory rules of construction, "psychiatrist" should be given its plain or literal meaning⁹³ —that is, "a physician specializing in psychiatry."⁹⁴

Texas courts have strictly construed Texas Rule 204's examiner requirements. For example, in Coates v. Whittington,⁹⁵ the Texas Supreme Court, applying former Texas Rule 167a, which like Texas Rule 204 authorized physicians and psychologists to conduct mental examinations, held that a trial court abused its discretion by ordering a plaintiff to "undergo a mental examination with a court appointed examining psychologist [because former Texas] Rule 167a expressly require[d] that a mental examination be conducted by a physician" and "[a] psychologist is not a physician."⁹⁶ Similarly, in Moore v. Wood,⁹⁷ the First Court of Appeals, applying former Texas Rule 167a, held that a trial court abused its discretion by ordering a vocational-rehabilitation interview.⁹⁸ Finally, in In re Advanced Power Solutions, Inc.,⁹⁹ the First Court of Appeals held that a movant failed to meet its burden under Texas Rule 204 with respect to a requested "functional capacity evaluation and impairment rating" by Ergonomic Rehabilitation of Houston, in part because the motion was "silent regarding who would perform the [evaluation]" and "whether it would be performed by a 'qualified physician.'"¹⁰⁰

A movant has "no absolute right to appointment of a physician of its own choosing to conduct the examination" under Texas Rule 204.1.¹⁰¹ Nonetheless, it generally should allow the movant's expert to conduct the examination if the expert is qualified.¹⁰²

A movant also has no "absolute right to have a physician of his own choosing conduct the independent examination of [a child]" under Texas Rule 204.4.¹⁰³

Family court judges may on their own initiative or on the motion of a party, appoint psychologists or psychiatrists to make any and all appropriate mental examinations of the children who are the subject of the suit or of any other parties. The family court judge may make such an appointment irrespective of whether a psychologist or psychiatrist has been designated by any party as a testifying expert.¹⁰⁴

In addition, in a suit affecting the parent-child relationship, a judge does not necessarily abuse his or her discretion by appointing the same psychologist to serve as the child's guardian ad litem and as "an expert psychologist to examine the parties and children to make recommendations to the court."¹⁰⁵

But, "[d]espite considerable discretion vested in courts to issue temporary orders 'for the safety and welfare of the child,' a court cannot act to infringe on a party's constitutional rights" in issuing such orders.¹⁰⁶ Thus, for example, a court cannot make a Texas Rule 204 appointment that...